Requirements for a 209A Restraining Order: Objectively Reasonable Fear and Imminence of Harm

Restraining orders occupy a very tricky place in Massachusetts
family law. On the one hand, they can do a huge amount of good: By keeping one person
away from another, a restraining order issued
under G.L.c 209A can prevent emotionally traumatizing harassment or even hot-blooded physical
violence. However, on the other hand,
restraining orders can be abused by the people who claim to be victimized by someone else, allowing them
to color an alleged perpetrator with the taint of domestic violence for
their own personal ends.

Just like any tool, 209A restraining orders in Massachusetts can do a lot
of harm or a lot of good. This puts family law judges in a rough position
of figuring out when such a restraining order should be issued because
it is needed, or whether it should be denied because it is merely wanted
for ulterior motives. A recent appellate case highlights some of the lines
that the courts have drawn to help them make this decision.

Table of Contents for this Blog

What Happened in K.K. v. U.M.: 209A Order Follows Divorce

A Reasonable Fear of Physical Harm

An Imminent Threat: 209A Requires Immediate Danger for Order

More than a “Generalized Apprehension” Is Needed for a 209A Order

What Happened in K.K. v. U.M.: 209A Order Follows Divorce

A husband and wife living in Massachusetts with one child got a divorce.
The child’s father had a history of suicidal behavior and had once
thrown a couple of things at the child’s mother out of anger, though
he had missed and had not hurt her. That incident had happened a year
ago, though he had also sent some harassing and racist text messages since
their divorce.

What made the mother in the case seek a 209A restraining order against
him stemmed from one morning where he was supposed to bring their child
to school. However, the child had left something at her mother’s
house, so the father had to stop there, first. Once at the mother’s
house, the father threw the child’s heavy backpack through the front
door, yelled “I can take [the child] to school or I can drop her
off [here],” and then left. The mother was upstairs at the time
this happened, so there was no chance for her being hit.

A Reasonable Fear of Physical Harm

In order for a 209A restraining order to be justifiably issued in Massachusetts,
the person seeking it has to “prove abuse by fear of imminent serious
physical harm,” and also that “the fear [is] reasonable.”
Iamele v. Asselin, 444 Mass. 734, 737 (2005). The requirement that the fear also be reasonable is an important one:
It makes the deciding judge look at the facts and circumstances from their
own eyes, rather than trying to put themselves in the shoes of the person
asking for the restraining order.

In light of this, the Appeals Court decided that the recent episode with
the father throwing the backpack through the door and storming out was
not something that would reasonably make someone fear for imminent physical
harm. Of particular importance to the court was the fact that the backpack
landed on the ground floor of the house, while the mother was on the floor
above. According to the court, this showed there was any intent at all
to hit the mother, making her fear unfounded.

An Imminent Threat: 209A Requires Immediate Danger for Order

Additionally, in order to get a 209A order, movants need to show that the
physical harm they fear is imminent. This is because of the unique role
that restraining orders occupy in the law: Their purpose is “preventing
imminent serious physical harm, not merely responding to past abuse.”
Dollan v. Dollan, 55 Mass. App. Ct. 905, 906 (2002). There are numerous other ways, like civil suits, that can better rectify
those past abuses. Still, the appellate courts seem reluctant to define
“imminent”, which in common everyday usage means “about
to happen”. Since the plaintiff has the burden of proof, it would
seem incumbent on the plaintiff make the attempt to articulate what he/she
believes is imminent. As a practical matter, however, the issuing courts
don’t seem to focus on or hold fast that requirement.

This meant that all of the past abuses and problems that the mother had
with the father in the case were substantially irrelevant to her 209A
request – they were simply too far removed for the courts to take
into account.

More than a “Generalized Apprehension” Is Needed for a 209A Order

What courts tend to focus on when determining whether to issue a 209A restraining
order is whether there is a specific threat to the movant or whether they
have a merely “generalized apprehension.”
Dollan at 906. The first is something that a restraining can and should be used to rectify
– where there is a definite and ascertainable threat, then a 209A
restraining order can direct law enforcement to stop it. The second, though,
is not something that can be effectively helped by the legal system without
putting severe restraints on the alleged abuser.

About the Author: James M. Lynch is a Massachusetts family law attorney for Lynch &
Owens, located in Hingham, Massachusetts.

Schedule a free consultation with James M. Lynch today at (781) 253-2049
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